For those of you who just can’t get enough D.C. drama, the Congressional Research Service developed a guide to help you understand the Justice Department naming a special counsel to investigate Russia's alleged involvement in the 2016 presidential election, including any possible involvement of President Donald Trump's campaign in that effort. Former FBI Director Robert Mueller was named as the special counsel.
Allegations of misconduct by federal officials in the executive branch of the federal government often lead to a renewed interest in the mechanisms of the appointment of a “special prosecutor,” an “independent counsel” or a “special counsel” to investigate and possibly to prosecute cases of perceived or potential criminal misconduct against government officials. Recently, questions have come up regarding the role of Congress when a special prosecutor, independent counselor or special counsel is appointed.
Role of Congress: Investigations and Legislation
Congress may initiate and conduct congressional investigations and hearings through various committees – including standing committees, select committees, or joint committees – into a wide range of the details, scope, authority, and impact of programs, policies, and conduct of executive branch officials and agencies of the federal government. Congress has a recognized inherent authority for oversight of the executive agencies and departments of government to ensure their efficient and proper functioning according to the laws that Congress has passed, to assure the proper expenditure of funds that Congress appropriates, and to explore and consider the need for possible remedial legislation.
Under separation of powers principles provided structurally within the Constitution, however, any criminal prosecutions on behalf of the United States relating to liability of any officer or employee of the government, or concerning the conduct of any other persons who may violate federal law, are considered to be executive functions under Article II of the U.S. Constitution, and ultimately under the authority of the President to “take Care that the laws be faithfully executed.”
Within the structure of the U.S. government and the executive branch, all law enforcement functions involving criminal prosecutions on behalf of the United States are to be conducted by the Department of Justice, under the direction of the attorney general of the United States, or his or her designee. Congressional hearings and investigations, in addition to providing general oversight and information for possible remedial legislation, may bring to light information and facts which may contribute to the public pressure on the administration or the attorney general to appoint an “independent” counsel or prosecutor to investigate matters in which high-level officials of the administration might be implicated.
In 1973, during the press and congressional revelations in the Watergate matter, the nomination of then-Defense Secretary Elliot Richardson to be attorney general was pending before the Senate for advice and consent. The Senate Committee reviewing the nomination obtained from Mr. Richardson an agreement that he would name an “independent” special prosecutor to pursue the Watergate allegations, and Mr. Richardson, as attorney general, then appointed under his own authority former federal judge Archibald Cox as “special prosecutor.”
In 2003, responding to public pressure and congressional calls for independent scrutiny of the allegations concerning possible White House connections to the leaking of the identity of a covert CIA employee, the Justice Department in the Bush Administration named a current U.S. Attorney, Patrick Fitzgerald, as a “special counsel” with full independent authority and autonomy to pursue the matter.
“Independent Counsel” or “Special Prosecutor” Legislation
In addition to congressional investigation and informational functions, Congress may have a legislative role in creating in law a mechanism for the appointment of independent counsels or special prosecutors in certain circumstances, as was done in 1978 largely in response to the incidents collectively known as “Watergate.”
Originally enacted as title VI of the “Ethics in Government Act of 1978,” these provisions of law had authorized the appointment of “independent counsels” (or “special prosecutors,” as they were known before 1983) by a special three-judge panel of the U.S. Court of Appeals for the District of Columbia upon the application of the attorney general. Those parts of the Ethics in Government Act relating to independent counsels regularly had five year “sunset” provisions, and were eventually allowed by Congress to expire after June 30, 1999. Since the law’s expiration no “independent counsel” or “special prosecutor,” as those terms have been used since 1978, may now be appointed by an independent judicial panel upon the request of the attorney general to investigate or prosecute a matter on behalf of the United States. Under the former independent counsel law, only the attorney general of the United States was authorized to request an appointment of an “independent counsel,” and that mechanism was one of the reasons that the Supreme Court had found the former provisions of law constitutional against separation of powers and Appointment Clause challenges. Although the former independent counsel statute had been phrased in mandatory terms (the attorney general “shall apply” for an independent counsel in certain specified circumstances), the decision to seek the appointment of an independent counsel was always a matter within the attorney general’s discretion, and was not reviewable in court.
The role of Congress under the former independent counsel law was very limited. Under the former provisions of law, Congress could not “order” or “trigger” the appointment of a prosecutor or independent counsel, because of constitutional separation of powers principles, but majorities of either party within the House or Senate Judiciary Committees could have requested action by the attorney general. The attorney general was not required to apply for the appointment of an independent counsel in response to such congressional request; and if the attorney general did not make such application, he or she was directed merely to respond to Congress with the reasons an independent counsel was not appointed.
The mechanisms for appointing counsels under the former law were “triggered” when the attorney general received “specific” and “credible” information alleging that certain high-level officials in the administration had committed serious federal offenses, or when the attorney general determined that an investigation of allegations of a violation of a federal criminal statute by any person would create “a personal, financial, or political conflict of interest” for the Department of Justice to investigate or prosecute. Thus, while addressing the conflict of interest inherent in an administration’s investigation of one of its own members was the principal purpose of the statute, the law also provided a so-called “catch-all” provision, added in 1983, to allow the attorney general to request an independent counsel for anyone, whether or not the person was in the president’s administration, when the attorney general perceived a conflict of interest for the Department of Justice to investigate or prosecute the matter. It is possible, in theory, that Congress could reauthorize the independent counsel law, or provisions of law somewhat similar to the former independent counsel law, to instruct the attorney general to seek the appointment of an “independent counsel” under certain circumstances. It may be noted in this regard that the independent counsel law had, in fact, been allowed to expire previously for a period of time: in 1992 the law expired under its five-year “sunset” provision when it was not reauthorized in the 102nd Congress. It was not until the publicity in the so-called Whitewater matter that Congress eventually reauthorized the law again in 1994.
“Special Counsels” and Department of Justice Regulations
When the independent counsel law expired after June 30, 1999, the attorney general promulgated specific regulations concerning the appointment of outside, temporary counsels in certain circumstances. Such personnel appointed by the attorney general from outside of the Department of Justice to conduct investigations and possible prosecutions of certain sensitive matters, or matters which may raise a conflict of interest for Justice Department personnel, are called “special counsels.” These special counsels are appointed by, are answerable to, and may have their prosecutorial or investigative decisions countermanded by, the attorney general. The “special counsels” under these regulations have, therefore, by express design, less “independence” from the Attorney general and the Department of Justice than did the “independent counsels” under the Ethics in Government Act of 1978, or the “special prosecutors” appointed by the attorney general for the Watergate matter. One special counsel that was appointed under the new regulations, former Senator John Danforth, was appointed by Attorney General Reno on September 9, 1999, to be special counsel to investigate the Branch Davidian incident near Waco, Texas, to determine if there had been any misconduct on the part of federal law enforcement personnel.
Under the Justice Department regulations, the appointment of a “special counsel” is completely discretionary with the attorney general. The criteria for the attorney general’s decision is whether a prosecution or investigation of a “matter” or of a person may raise a conflict of interest for the Department of Justice, or whether there exist “other extraordinary circumstances,” and when, in light of these conflicts or circumstances, the attorney general finds that it is in the “public interest” to appoint such counsel. The most significant departures in the “special counsel” regulations from the former statutory “independent counsel” schemes are that (1) the attorney general, and not an independent body such as the three-judge panel, actually names the person who is to be the special counsel; (2) the attorney general, and not an outside panel, establishes and defines the prosecutorial jurisdiction of the special counsel; (3) the general jurisdiction of the special counsel is limited to the specific matter referred to him or her, as well as collateral offenses arising out of the investigation which interfere with the investigation; (4) the special counsel is subject to all the notification, and “review and approval” provisions of the internal Department of Justice procedures, policies, and practices (but may circumvent certain review and approval procedures by consulting directly with the attorney general); (5) the attorney general must be notified concerning significant actions that the special counsel is to take, and may countermand any proposed action by the special counsel; (6) appeals of cases by the special counsel must be approved by the Solicitor General of the United States, a presidential political appointee; and (7) Justice Department regulations provide that a special counsel may be removed by the attorney general for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Department policies,” while the statute provided that independent counsels could be removed by the attorney general for “good cause, physical or mental disability.”
Other “Special Counsels”
In addition to the specific special counsel regulations promulgated in 1999, the attorney general of the United States, under the general statutory authority of the attorney general to hire staff and oversee the conduct of federal criminal investigations and prosecutions, may appoint staff to the Department of Justice on a part-time or intermittent basis, or may re-assign current prosecutorial personnel already employed by the Department, to conduct and coordinate particular criminal investigations and possible criminal prosecutions. With the increased public attention in 1993-1994 to allegations concerning the President and First Lady in what became known as the “Whitewater” matter, the attorney general of the United States, not having a statute under which to request the appointment of an independent counsel by a court, named on her own authority a “special counsel” or “regulatory independent counsel,” with authority and powers nearly identical to those of statutory independent counsels to investigate and potentially to prosecute any wrongdoing involved in the “Whitewater” and related matters.
On December 30, 2003, Deputy Attorney General James B. Comey, in his capacity as acting attorney general (upon recusal of Attorney General Ashcroft), designated Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois, as the “special counsel” to investigate the alleged unauthorized disclosure of a CIA employee’s identity. Special Counsel Fitzgerald was delegated significantly more independence in his authority and operations than a special counsel would have under the existing regulations promulgated in 1999. It may be noted that the Government Accountability Office ruled that the expenses for the investigation by Special Counsel Fitzgerald, although he was not appointed under the standing “special counsel” regulations promulgated by the Department of Justice, and was a current and existing U.S. Attorney, could be paid from the permanent, indefinite appropriation for independent counsels in the Department of Justice.